Opinion
C3-99-77
October 22, 2001
MEMORANDUM AND ORDER
I. Introduction
Before the Court is a motion by defendant to modify the conditions of his supervised release (doc. # 43). On February 28, 2000, this Court sentenced defendant to thirty months imprisonment following a plea of guilty to the charge of being a felon in possession of a firearm and ammunition. For the reasons set forth below, defendant's motion is DENIED.
II. Background
On December 13, 1999, defendant pled guilty to one count of being a felon in possession of a firearm and ammunition. The Court ordered the probation service to prepare a presentence investigation report (PSI) for its benefit. The PSI revealed that defendant was a criminal history category three. Three of defendant's prior four convictions, as reflected in various state court judgments, involved alcohol. One of these prior judgments, for criminal sexual conduct in the third degree, Morrison County, Minnesota, included a requirement that defendant participate in alcohol treatment. The PSI revealed, however, that the state probation officer had filed a violation report alleging defendant continued to have problems with alcohol, as seen by his failure to follow the recommendations of alcohol treatment and another conviction for driving under the influence. That conviction, from Todd County, Minnesota, again included an alcohol assessment, and a violation warrant was later issued because of his failure to follow through with it. The final conviction, from Stutsman County, North Dakota, also had elements of alcohol, including a count for an open container in a car. The PSI also contained a lengthy statement from defendant in which he discussed in detail his struggles with alcohol and desire to stay sober. It also indicated that he was drinking at the time of the offense.
With these facts before it, the Court added to the judgment five special conditions of supervised release. Defendant challenges the first and third. The first condition provides
That if during the period of supervised release the supervising probation officer determines the defendant is in need of alcohol/drug counseling, psychological/psychiatric counseling, vocational/technical training, or placement in a community treatment facility, under Title 18, U.S.C. A§ 3563, the defendant shall voluntarily commit himself to enroll in such an institution, training program or treatment facility as the probation officer designates, diligently apply himself to cooperate fully with the staff and not withdraw from the facility or the program without the prior permission of the supervising probation officer.
The third condition requires "that the defendant submit to urinalysis testing as designated by the supervising probation officer." Defendant challenges these conditions on the grounds that they delegate too much authority to the probation officer to determine the course of his supervised release. The United States disagrees, arguing that the delegations are permissible. The Court agrees with the United States' position. However, to the extent defendant may be correct, this Order will serve to clarify the Court's judgment and directions to the probation officer.
III. Analysis
A. Introduction
Courts are authorized to impose special conditions of supervised release upon a defendant to assist him in making the transition to community life. See 18 U.S.C.A § 3583; United States Sentencing Guidelines A§ 5D1.3(b). Thus, supervised release is intended to serve rehabilitative ends distinct from the ends served by incarceration. See United States v. Johnson, 529 U.S. 53, 59 (2000). Courts are authorized to use nonjudicial court staff — probation officers — to assist with overseeing such release, so long as the court retains ultimate authority. See United States v. Kent, 209 F.3d 1073, 1078-79 (8th Cir. 2000) (citing United States v. Johnson, 48 F.3d 806 (4th Cir. 1995)).
Initially, the Court notes that it is not apparent that this issue is ripe. Certainly, defendants may appeal conditions of supervised release upon their imposition. See Kent, 209 F.3d 1073, 1074 (entertaining such an appeal); United States v. White, 244 F.3d 1199, 1203-04 (11th Cir. 2001) (analyzing ripeness concerns for appeal of supervised release conditions and concluding immediate appeal is appropriate). However, Lykken did not directly appeal this issue; rather, he attacked other aspects of the case with a habeas corpus motion (doc. # 25), which this Court denied (doc. # 37), a denial affirmed by the circuit (doc. # 41).
This motion is clearly not in the nature of an appeal; rather, it is an effort to modify the conditions at the trial court level. However, no conditions have as yet been enforced on defendant, as he is still in prison. Therefore, it is not entirely clear that this issue is ripe. However, because it can be easily disposed of, the Court will address the substance of defendant's arguments.
B. Defendant's arguments: Kent and Peterson
Defendant here argues the Court has delegated too much authority to the probation officer. In so doing, he relies heavily on two recent cases. After reviewing them, the Court finds these cases are distinguishable from the case at bar, and they thus do not strictly control the Court's ruling.
The first case on which defendant relies is United States v. Kent, 209 F.3d 1073 (8th Cir. 2000). Kent was sentenced to 27 months in prison and three years of supervised release for mail fraud. Id. at 1074. He challenged a condition requiring him to "participate in an appropriate psychological/psychiatric counseling program as directed by his probation officer." Id. The court held this condition improperly delegated a judicial function by allowing the probation officer to determine if Kent would undergo counseling. Id. at 1079. However, the holding was limited "only to the facts of the case . . . as we realize that the federal district courts cannot be expected to police every defendant to the extent that a probation officer is capable of doing." Id.
Therefore, Kent is limited to its facts, and those facts are radically different from those here. Id. The key problem with the condition in Kent was that "there [was] no evidence suggesting the necessity or desirability of the condition and the alleged reason for the condition [was] based upon events taking place long before" the events at issue. Id. at 1078. It was only in this context — in which the court had found the record did not show a need for the condition and the trial judge had explicitly stated he would not "ride herd" on the probation officer — that the Eighth Circuit found the treatment clause delegated too much authority. In such a situation, the court was concerned that the trial court would not retain the ultimate authority over decisions required for a proper delegation. As will be explored below, this is not the case here.
Defendant also cites United States v. Peterson, 248 F.3d 79 (2d Cir. 2001). The Court initially notes that, while they may be persuasive, it is not bound by Second Circuit decisions. However, even if it were, this case would not change the Court's ruling. The court in Peterson held that a clause of supervised release relating to sex offender counseling might have delegated too much authority to the supervising probation officer. Id. at 85. The court found that the clause did not sufficiently clarify whether the court was ordering sex offender treatment, to be arranged by the probation officer, or whether it was allowing the probation officer to determine if defendant would have sex offender counseling, which would be an impermissible delegation. Id. Again, like Kent, Peterson is limited to its own unique facts and circumstances; it does not announce a general rule that affects the case at bar.
The lesson of Kent and Peterson is that special conditions of probation must be evaluated in light of the facts of the case, as reflected by the PSI and other material in the file. They do not announce a general rule that counseling clauses are impermissible, as defendant seems to suggest. Therefore, the Court turns to a review of the clause at issue here, an the facts underlying it.
C. Application
The facts of this case are radically different from those of Kent or Peterson. Most importantly, the PSI in this case clearly discloses that defendant has major problems with alcohol. These problems have resulted in several convictions and played a part in the offense which placed him in federal court. The PSI also showed a history of failure to comply with court-ordered alcohol treatment, and it contains defendant's admission that alcohol was a key problem in all his criminal activity. Therefore, unlike in Kent, this Court sentenced a defendant who both clearly needed treatment, in this case for alcohol, and who seemed incapable of complying voluntarily with such treatment.
The Court's judgment showed its concern. The Court recommended to the Bureau of Prisons that defendant "be afforded the opportunity to participate in the 500 Hour drug treatment program (DAP)," reflecting a desire for alcohol treatment while in custody. It then ordered five special conditions of release, three of which related to alcohol (two of them are challenged here); in addition to the conditions at issue, the Court ordered that defendant "shall totally abstain from the use of alcoholic beverages during the period of supervision." The challenged provisions must therefore be analyzed in the context of the Court's obvious concern about defendant's alcohol abuse, a concern well supported by the record.
When viewed in this context, the conditions at issue easily survive the challenge. First, the requirement that defendant submit to urinalysis testing is clearly permissible. This condition follows naturally from the abstinence condition, which defendant does not challenge; the Court has merely empowered its probation staff to verify that defendant is complying with the conditions of release. The condition gives the probation staff only the discretion to "designate" the time and frequency of such tests. In the Court's view, this does not exceed the legitimate bounds of delegation. See Kent, 209 F.3d at 1078-79. As expressed in Peterson, this clause orders testing and leaves only the details to the probation service. Peterson, 248 F.3d at 79. Defendant expresses some concern that the probation officer may, in his discretion, "administer a few hundred tests over a few hundred days." Though the Court is confident its probation staff would never do so, the Court reminds defendant that he can petition for a change in the conditions if the testing is excessively onerous. See 18 U.S.C. A§ 3583(e).
Second, the more general treatment clause is also supported. Concededly, this is a broad clause. However, it reflects the Court's conclusions, supported by the PSI, that defendant clearly needs alcohol training and might benefit from other types of counseling. Therefore, it is not unconnected to the facts of the case, as was the condition in Kent, but instead reflects the facts and circumstances which brought defendant to court. Further, as the United States points out, the Court does retain ultimate control; if defendant disagrees with the probation officer's decision, he is free to challenge it either by seeking modification himself or resisting a petition by the probation officer. See 18 U.S.C.A § 3583(e).
Thus, the clause functions as a device by which the probation officer recommends treatments he believes will be beneficial; if defendant disagrees, the Court will decide the matter. Therefore, the Court finds that this condition is supported by the record, but it will remain open to defendant's further arguments in the future. Such arguments, however, must be presented in the context of a specific dispute, not in the abstract as this motion is.
IV. Conclusion
As set forth above defendant's motion to modify the conditions of his supervised release is DENIED.
IT IS SO ORDERED.